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Judgment
Padmanabhan, J.—The four petitioners herein have filed this writ petition for the issue of a writ of mandamus directing the Deputy Inspector
General of Police, Crime Branch, C.I.D., Madras, the third respondent, to make a report under S. 173(8) of the Crl.P.C in Arachalur Police
Station Crime No. 394 of 1981 (now pending enquiry in P.R.C. No. 7 of 1982 on the file of the Court of the Additional Judicial Second Class
Magistrate, Erode) to enable the Additional Judicial Second Class Magistrate, Erode to take further action in the said P.R. No. 7 of 1982. The
facts leading to the filing of this writ petition are stated thus. In respect of an incident, that is alleged to have taken place on 25th October, 1981 at
Kolathur village in Periyar District, in which, two persons met with death, the Inspector of Police, Kodumudi, took up investigation. He filed the
report under S. 173(2) of the Crl.P.C. (the charge-sheet) in which all the petitioners herein and two others have been arraigned as accused in
respect of the alleged offences under SS. 120-B, 148, 149 and 302, I.P.C., before the Additional Judicial Second Class Magistrate, Erode.
Thereupon, the petitioners made representation to the Inspector General of Police (Crime, Law and Order), Madras on 28th January, 1982 stating
that they were absolutely innocent and the matter should be investigated further. Thereupon, the Inspector General of Police directed further
investigation by the Crime Branch, C.I.D. Consequently, the Inspector of Police, Kodumudi filed a memo before the Additional Second Class
Magistrate, Erode on 26th February, 1982 requesting the Additional Second Class Magistrate to keep the charge-sheet file by him in abeyance till
the result of reinvestigation was known. The case of the petitioners is that accordingly a further investigation has been made by the Crime Branch,
C.I.D., but no report as required under S. 173(8) of the Crl.P.C, has yet been filed before the Additional Second Class Judicial Magistrate,
Erode. It is, in these circumstances, the writ petition has been filed.
. 2. A counter-affidavit has been filed by the the Superintendent of Police, C.B., C.I.D., Madras. In the Counter-affidavit it is admitted that the
petitioners submitted petitions to the higher police authorities stating that they were innocent and falsely implicated in the case. Since the charge-
sheet had already been filed the Crime Branch, C.I.D., did not take up any reinvestigation. However, it is admitted that there was a confidential
probe into the conduct of the local police as ordered by the 4th respondent and that was meant for the Director General of Police. The fact that the
Inspector of Police, Kodumudi, the first respondent, filed a memo before the Additional Judicial Second Class Magistrate, Erode, the 6th
respondent, on 26th February, 1982 is admitted, but it is stated that the memo was factually incorrect. A further contention is taken that the
petitioners ought to have filed a criminal revision petition before this Court against the order passed by the Magistrate in Crl.M.P. No. 4481 of
1982 and the petition is not maintainable.
When the matter was taken up in the first instance, I directed the Government Pleader to find out whether there was any further investigation and
whether there was any report by the investigating authority. On the next hearing date, the learned Government Advocate filed a report and two
communications. The report is one made by the Deputy Superintendent of Police, Crime Branch C.I.D., Madras, dated 16th February, 1981 for
the information of the Deputy Inspector General of Police, Madras. Another document is a letter dated 26th February, 1981 sent by the Deputy
Inspector General of Police, Madras to the Collector-cum-Executive Magistrate, Erode and the third one is the letter sent by the Collector-cum
Executive Magistrate, Erode to the Deputy Inspector General of Police on 16th March, 1983. The learned Government Advocate after producing
the above records claimed privilege and wanted time to file an affidavit. On the last occasion when the matter was heard, the learned Government
Advocate produced a letter addressed to him by the Deputy Inspector General of Police. In the said letter, the Deputy Inspector General of Police
has not claimed any privilege in respect of these documents On the other hand, the Deputy Inspector General of Police has stated that the learned
Government Advocate can take the stand that may be required in the interest of justice. In .view of this letter, the learned Advocate Mr. Sadanand
did not claim any privilege in respect of these documents. However, the learned counsel argued that the report was not one prepared under S.
173(8) of the Crl.P.C, as a result of further investigation. It was only a confidential report submitted by the Deputy Superintendent of Police, Crime
Branch, C.I.D., Madras, as required by the Deputy Inspector General of Police and consequently no order could be passed by this Court
directing the respondent to forward the said report to the Magistrate.
On the other hand, Mr. N.T. Vanamamalai, the learned counsel for the petitioners argued that there could be no other investigation in a criminal
case except an investigation as provided for under the provisions of the Crl.P.C. The Inspector General of Police on representation made by the
petitioners found as a result of enquiries that there were serious flaws in the enquiries conducted by the District Police and therefore, directed that a
further investigation should be made by the Crime Branch, C.I.D., Madras. Consequently, in the submission of Mr. N.T. Vanamamalai the report
could only be a report as contemplated under S. 173(8) of the Crl.P.C, and therefore, the respondents were under a duty to forward the report to
the Magistrate in the form required under S. 173(8) of the Crl.P.C.
The report itself has been produced before me by the learned Government-Advocate. The only question for consideration therefore, is whether
the report of the Deputy Superintendent of Police, Crime Branch, C.I.D., Madras, dt. 16th February, 1982, is a report prepared under S. 173(8)
of the Crl.P.C., as a result of further investigation. Before we consider this question, it will be useful to refer to the power of the police regarding
investigation.
Chapter XII of the Crl.P.C. deals with information to the Police and their powers to investigate. Ss. 154, Crl.P.C, confers power on a police
officer, whenever he receives information relating to the commission of cognizable offence, to enter the substance thereof in a book kept by him for
that purpose in the prescribed form. S. 156, Crl.P.C. confers power on the police officer to investigate into cognizable offences without the order
of a Court. S. 157, Crl.P.C. states that if from the information received or otherwise the police officer suspects commission of a cognizable offence
he should send forthwith a report of the same to the Magistrate empowered to take cognizance of such offences upon a Police report and then to
proceed in person or depute one of his subordinate Officers to proceed to the site to investigate the facts and circumstances of the case and to
take measures for the discovery and arrest of the offender. S. 173, Crl.P.C, enjoins the police officer to complete the investigation without
unnecessary delay and as soon as it is completed forward to a Magistrate empowered to take cognizance of the offence upon a police report, a
report a the prescribed form setting, forth the names of the parties, the nature of the information and the names of the persons who appeared to be
acquainted with the circumstances of the case. He is also required to state whether the accused had been forwarded in custody or had been
released on bail. Upon receipt of the report submitted under S. 173(2) Crl.P.C, the Magistrate empowered to take cognizance of an offence, upon
a police report, might take cognizance of the same under S. 190(1)(b), Crl.P.C. Finally, if the Magistrate is satisfied that there is sufficient ground
for proceeding further, the Magistrate is required to secure the attendance of the accused. Thus under the Crl.P.C., investigation consists generally
of the following stages: (1) Proceeding to the spot (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the
suspected offender, (4) Collection of evidence relating to the Commission of the offence which may consist of (a) the examination of various
persons (including the accused) and the reduction of their statements into writing, if the Officer thinks fit, (b) the search of places or seizure of
things considered necessary for the investigation and to be produced at the trial. (5) Formation of the opinion as to whether on the material
collected there is case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by filing of a charge-sheet
under S. 173(6). Taking cognizance of the case by the Magistrate and finally issuing process to the accused. In 1974 S. 173(8) was introduced
which is to the following effect :
Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-S.(2) has been forwarded
to the Magistrate, and where upon such investigation, the Officer in charge of the Police Station obtains further evidence, oral or documentary, he
shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of sub-Ss.(2) to (6)
shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-S.(2)
The effect of the section is that notwithstanding the fact that a report has already been forwarded to the Magistrate under sub-S.(2)of S. 173.
Crl.P.C., it will be open to the Police Officer to make further investigation in respect of an offence if circumstances so warrant. As and when such
investigation is made and further evidence, oral or documentary, is obtained, the Police Officer is under a duty to forward to the Magistrate a
further report or reports regarding such evidence in the form prescribed. The provisions of sub-Ss.(2) to (6) shall, as far as maybe, apply in
relation to such report or reports in the manner they are applicable to a report forwarded under sub-S.(2)of S. 173. This section is based on the
necessity to confer express power on the police to make further investigation and submit supplemental report.
To borrow the language of the Supreme Court in Ram Lal Narang Vs. State (Delhi Administration), which was a case which arose prior to the
introduction of S. 173(8) : ""It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to
visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve personal ready accused.
When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibis, is it not the duty of that
agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all the investigation agency has greater
resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of
the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and
submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course
of action depending upon the stage at which the case is before him."" In the said case, the Supreme Court has further observed that in the interests
of the independence of the Magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of
the comity of the various agencies and institutions entrusted with different stages of such administration it would ordinarily be desirable that the
police should inform the Court and seek formal permission to make further investigation when fresh facts come to light. The above, if I may say so
with respect, succinctly emphasises the need to clothe the police with the statutory power to make further investigation and file a supplemental
report.
In this connection, I may also refer to the following recommendations of the Law Commission in its 41st Report, which was also prior to the
introduction of S. 173(8), Crl.P.C.
A report under S. 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under S. 173
comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the Police Officer can collect the evidence and
send it to the Magistrate concerned. It appears, however, that Courts have sometimes taken the narrow view that once a final report under S. 173
has been sent the police cannot re-touch the case again and cannot reopen the investigation. This view places a hindrance in the way of the
investigation agency which can be very unfair to the prosecution and, for that matter, even to the accused. H should be made clear in S. 173 that
the competent police officer can examine such evidence and send a report to the Magistrate. Copies concerning the fresh material must be of
course, furnished to the accused.
It therefore follows that whenever fresh facts occur to the Police resulting in further investigation, it is the duty of the police to send a supplemental
report based on such materials to the Magistrate in terms of S. 173(8) and this statutory duty cannot be lightly dealt with.
In this case, it is not disputed that the petitioners made representations to the Inspector General of Police (Crime, Law and Order), Madras
stating that they have been falsely implicated, that they were not present at the scene of occurrence at the time it occurred and that they were
innocent. Accordingly, the Deputy Superintendent of Police, Crime Branch, C.I.D., Madras was asked to make, a further investigation. He filed
his report on 16th February, 1982. It is this report that has been placed before the Court by the learned Government Advocate. According to the
learned Government Advocate this is not a report under S. 173(8) Crl.P.C., but a confidential report submitted by the Deputy Superintendent of
Police to the Inspector General of Police and hence, it cannot be filed into court. At this stage, it may also be remembered that on 18th February,
1982 admittedly the Inspector General of Police, Crime, Law and Order, Madras issued a memorandum to the effect that the enquiry by the
Crime Branch, C.I.D., into the investigation done in the case by Periyar District Police had revealed a number of flaws and it had been decided
that the case be reinvestigated by the Crime Branch C.I.D. Accordingly, the Deputy Inspector General of Police, C.I.D. Crime Branch was
directed to take up the case at once, have it investigated by a competent Officer and report quickly on his findings. The memorandum further
directed the Superintendent of Police, Periyar District to report about the fact of reinvestigation to the Additional Judicial Second Class Magistrate,
Erode and request him to keep the charge-sheet already filed by the Inspector of Police, Kodumudi in abeyance till the result of reinvestigation was
known. Accordingly, the Inspector of Police, Kodumudi filed a memorandum before the Additional Judicial Second Class Magistrate, Erode
requesting him to keep the charge-sheet filed by him in abeyance till the result of investigation was known. It was returned asking the Inspector of
Police to point out the provisions under which it was being filed. The papers were resubmitted with the endorsement that it was being done under
S. 173(8), Crl.P.C. However, on 28th June, 1982, the Inspector of Police, Kodumudi, filed a memo, before the Additional Judicial Second Class
Magistrate, Erode stating that the Director General of Police, Madras has retransferred the case to the local police with instructions to handle the
case till its final disposal in the Court, and therefore, the case might be proceeded with against the accused. Thereafter, the petitioners filed an
application to direct the police to file a report in terms of S. 173(8), Cr. P.C. together with S. 161 statements of witnesses examined, which was
dismissed. According to the learned Government Advocate there is no further report, excepting the one produced in Court.
The question for consideration is whether the report now produced in Court prepared by the Deputy Superintendent of Police, Crime, Branch,
C.I.D., Madras, dt. 16th February, 1982 can be said to be a report under S. 173(8) Cr.P.C. and the respondents can be compelled to produce
the same into Court. At the risk of repetition it might be recalled that the respondents do not now claim any privilege or confidentiality in respect of
the said report. It is admitted in the counter affidavit that the petitioners made a representation to the Inspector General of Police of the basis of
which he ordered further investigation into the matter. It is on the basis of such direction that the Deputy Superintendent of Police, Crime Branch,
C.I.D., Madras enquired into the matter and submitted his report dt. 16th February, 1982. As a matter of fact, the report itself refers to the
representation made by petitioners and details the enquiries made by the Deputy Superintendent of Police, Crime Branch, C.I.D., Madras and
finally gives the conclusion arrived at by the Deputy Superintendent of Police, Crime Branch, C.I.D. as a result of his enquiry. Investigation is
defined in S. 2(h) Crl P.C, as including all proceedings for the collection of evidence conducted by the Police Officer. S. 36, Crl.P.C confers
power upon a superior Police Officer, the power that is conferred on officers in charge of a police station. It states: ""Police Officers superior in
rank to an officer-in-charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be
exercised by such Officer within the limits of his station."" Thus, an Officer superior in rank to an Officer-in charge of a police station could as well
exercise the power of further investigation under S. 173(8) in view of the provision embodied in S. 36 of the Code. The Deputy Superintendent of
Police, Crime Branch, C.I.D., was directed by the Inspector General of Police (Crime, Law and Order), Madras to make a further investigation in
the case. This is clear from the letter, dated 26th February, 1982 (produced in Court along with the report) written by the Deputy Inspector
General of Police, Crime Branch, C.I.D., to the Collector-cum-Executive Magistrate, Periyar District. Paragraph 3 of that letter reads:
further investigation in this case has been taken over by C.B.C.I.D. as per orders of the I.G.P. (C.L.O.), Madras (copy enclosed).
Paragraph 4 of the letter states that in the interest of justice, the charge-sheet against the petitioners should be dropped and the prosecution against
them withdrawn as contemplated under S. 321, Crl.P.C. This letter must have been written only on the basis of the report submitted by the Deputy
Superintendent of Police, Crime Branch, C.I.D. on 16th February, 1982. When once it is accepted by the Deputy Inspector General of Police,
Crime Branch, C.I.D., that the case was further investigated by the Crime Branch C.I.D., and a report has been submitted to the I.G. on 16th
February, 1982, such a report could only be a report as contemplated by S. 173(8), Crl.P.C. It is not the case of the learned Government
Advocate that the Inspector General of Police, Crime, Law and Order, Madras, has no power to order a further investigation of the case and on
his direction the Deputy Superintendent of Police, Crime Branch, C.I.D. submits a report, that report can only be a report under S. 173(8),
Crl.P.C. I, therefore hold that the report dated 16th February, 1982 submitted by the Deputy Superintendent of Police, Crime Branch, C I.D.,
Madras is a report under S. 173(8) Crl.P.C., consequently, the respondents are obliged to file this report in terms of S. 173(8), Crl.P.C., before
the Additional Judicial Second Class Magistrate, Erode.
Apart from the mandatory provisions, the fact that the report as produced would have an effect upon the fortunes of the petitioners in the
proceeding is itself a compelling reason for its being produced before the Magistrate. On the basis of this report and the communication of the
Deputy Inspector General of Police, Crime Branch, C.I.D., dated 20th February, 1982 requesting the Collector-cum-Executive Magistrate,
Periyar district to drop the prosecution against the petitioners, Mr. Vanamamalai took the stand that the entire proceedings should be quashed. On
the other hand, both the learned Government Advocate Mr. Sadanand and Mr. Sengottian, the learned Counsel for respondent No. 7 contended
that this Court cannot at this stage quash the proceedings and that it will be open to the Magistrate to take appropriate action once the report is
forwarded to the Magistrates directed by this Court. I accept the contention of the learned Government Advocate and Mr. Sengottian. I am of the
view that in this writ petition, it is not open to the Court to quash the criminal proceedings.
I have already referred to a contention taken in the counter-affidavit filed by the respondents that the writ petition is not maintainable and the
remedy of the petitioners would be to file a criminal revision petition against the order passed by the Magistrate dismissing the application filed by
the petitioners to direct the Police to file a report in terms of S. 173(8), Crl.P.C., together with S. 161 statements of witnesses examined, (sic) on
the strength of certain Supreme Court decisions that the application that was filed before the Magistrate was misconceived and that it would not be
open to the criminal court to interfere with the investigation by the police and that the only remedy of the petitioners would be to approach this
Court under Art. 226 of the Constitution of India. The question relating to maintainability of the writ petition was not challenged before me by
either the learned Government Advocate or Mr. Sengottian. In the circumstances, it is unnecessary to refer to the citations made by Mr.
Vanamamalai.
In the result, the rule is made absolute and the respondents are directed to file the report dated 16th February, 1982 as required by and in
terms of S. 173(8) of the Crl.P.C., before the Additional Judicial Second Class Magistrate, Erode. There will be no order as to costs.